Uday Bhanu Maheshwari S/o Shri Babu Lal Maheshwari vs State of Rajasthan Through P.P.

Since these bail applications arise out of the same FIR, they

are being decided by this common order.

These bail applications have been filed under Section 439

Cr.P.C. arising out of FIR No.217/2016, registered at Principal

Police Station, Anti Corruption Bureau, Jaipur for offences

punishable under Sections 7, 12, 13(1)(d), 13(2) and 14 of the

Prevention of Corruption Act, 1988 and Sec. 120B IPC .

Shri SS Hora, learned counsel for the accused-applicant Ram

Karan Meena submits that the accused-applicant is in judicial

custody since 19/07/2016 and charge-sheet has been filed by the

Anti Corruption Bureau on 15/09/2016. It is argued by the counsel

that no amount has been accepted by the accused-applicant and

no recovery has been made from him despite there being a trap

and therefore, the arrest of the accused-applicant is unlawful. It is

further argued that the accused-applicant was presented before

the Competent Court much after the stipulated time prescribed

under Section 57 and 167 Cr.P.C. and the remand order was even

without registration of the FIR. It is further contended that the

Anti Corruption Bureau had forced Prafful Moreshwar Sontake to

deliver Rs.10 lac to accused-applicant but the accused-applicant

had refused to take the said amount. Counsel further contends

that the entire case of the Anti Corruption Bureau is based upon

the interception of mobile phone of co-accused Rishabh Sethi and

Keshav Gupta and the said interception was in violation of Section

5(2) as well as Rule 4(1) of the Telegraph Act as well as Rule 419A

of the Telegraph Rules. Counsel further argued that the transcript

recorded was in violation of Section 65B of the Evidence Act as no

certificate as per the same provision was ever filed by the

prosecution and therefore, the transcript is not admissible in

evidence and cannot be used by the prosecution to establish a

prima-facie case against the accused-petitioner. Counsel further

argued that the transcriptions are not reflecting any fact

pertaining to the accused-applicant and therefore, cannot be relied

upon for making out a prima-facie case against the accused-

applicant and therefore, the accused-applicant deserves to be

granted indulgence of bail. It is further argued that the offence

was not constituted against the accused-applicant under Section

7, 12, 13(1)(d), 12(2) and 14 of the Prevention of Corruption Act,

1988. In support of his submission, counsel relied upon a

judgment of the Apex Court in the case of Nilesh Dinkar Vs. State

of Maharashtra: 2011(4) SCC 143. Counsel also relied upon a

judgment of this Court in the case of Kanhaiya Lal Vs. State of

Rajasthan: 2010(1) CRLR (Raj.) 832 as well as a judgment of the

Apex Court in the case of Sanjay Chandra Vs. Central Bureau of

Investigation: (2012) 1 SCC 40.

Shri Ashvin Garg, learned counsel for the accused-applicant

Uday Bhanu Maheshwari submits that on interception of mobile

phones of Shri Rishabh Sethi, Managing Director and Shri Keshav

Gupta, it came to the knowledge that these persons were sharing

various information regarding various projects of Company being

run in different areas of the State to get the budget allotted, to

render help in execution of work at site, to get tender and to

release payments without executing the work and for that purpose

to give bribe money to various officials posted at different places

etc. It was alleged that apart from Shri Keshav Gupta and Shri

Rishabh Sethi, the officers of the Public Health & Engineering

Department namely; Shri R.K. Meena, Chief Engineer; Subodh

Kumar Jain, Uday Bhanu Maheshwari (accused applicant herein)

and Rajendra Agnihotri and others had played active role. It was

also alleged that during the course of investigation, it was found

that the accused-applicant, by abusing his official position, had

conspired with SPML Company to render illegal benefit to the

Company to cause loss to the Government and had received illegal

gratification of Rs.15 lac on 18/07/2016 from Shri Akash Totla, an

employee of the Company. Counsel submits that the accused-

applicant himself surrendered before the Court on 01/08/2016. It

is argued by counsel for the accused-applicant that no illegal

gratification was received from any official of the Company by the

accused-applicant on 18/07/2016 or on any other date. It is also

argued that the Company did not have any pending work in which

the accused-applicant could have helped. The accused-applicant

was also not a competent officer to render any illegal help to any

work of the Company. It is further argued that all the important

decisions were being taken by a high level empowered Committee

and the accused-applicant had no role in it. It is further argued

that no demand for bribe money was ever established against the

accused-applicant. The accused-applicant was also not involved in

any direct conversation with the officials of the Company. Since no

recovery has been made and the accused-applicant is in judicial

custody for a long time, therefore, the accused-applicant may be

released on bail.

Shri AK Gupta, learned counsel for the accused-applicant

Subodh Kumar Jain submits that as regards the surveillance of

mobile of Keshav Swaroop Gupta and Akashdeep Totla, from the

call details and details related to CDR submitted alongwith the

charge-sheet, which indicates recording of the talks from

29/04/2016 onwards, it is clear that till date of arrest i.e.

19/07/2016, not a single word related to the talk by the accused-

applicant regarding any demand was made by him. It is argued by

the counsel that it seems that one employee namely; Shri Prafull

Moryeshwar of SPML Infra Ltd was alleged to have come in the

house of the accused-applicant with a bundle in his hand and after

some time, he returned. The prosecution case that he had Rs.5 lac

to be paid to the accused-applicant and on search of house,

personal amount related to wife of the accused-applicant to the

tune of Rs.4 lac 68 thousand was recovered. Afterwards, a bundle

of notes was also found near the Shoe Rack outside the house in

an open place and the prosecution has alleged that the amount

was given by Shri Prafull Moryeshwar as a bribe to the accused-

applicant. Counsel argued that there was no criminal conspiracy

by the accused-applicant with the officers of SPML Infra Ltd. and

no amount was received by the accused applicant. The accused-

applicant was arrested on 19/07/2017 and charge sheet has been

filed under Section 7, 12, 13(1)(d), 13(2) and 14 of the Act of

1988 and undr Section 120B IPC and investigation has been kept

pending under Section 173(8) Cr.P.C. Counsel at last submits that

the accused-applicant deserves liberty of bail.

On the other hand, Shri Rajendra Prasad, AAG, Senior

Advocate assisted by Shri Atul Singh Chauhan, learned counsel for

the respondent-State states that there was a larger design of

corruption entangling Public Health & Engineering Department and

the officials of SPML Company regarding the projects being

undertaken by them. The mobile phones of the Senior Officers of

the Company were intercepted adopting due process of law and on

recording such conversations, it was established that the Company

officials particularly, Shri Rishabh Sethi and Vice-President Shri

Keshav Gupta were bribing the Senior Officers of the Department

through Shri Akash Deep Totla. As per counsel for the

respondents, the machinery of corruption was deep rooted and

ranged from lower hierarchy of the officers to higher hierarchy of

the officers of the department and therefore, at this stage, when

the investigation was pending under Section 173(8) Cr.P.C., it

would not be appropriate to release the accused-applicants on bail

as they are highly influential persons and releasing them on bail

will definitely hamper the further investigation in the case.

After hearing counsel for the parties, this Court is of the

opinion that the matter pertains to crucial public projects and the

allegations are of larger criminal conspiracy to engage in

corruption regarding such public projects directly affecting the

welfare of the public at large. On the face of it, the corroborative

evidence was evident and the transcripts produced by the

prosecution made out a prima-facie case against the accused-

applicants. Moreover, some of the accused persons are still

absconding and the process of investigation is still continuing as

the further investigation is pending under Section 173 (8) Cr.P.C .

The precedent law cited was in favour of liberty but at this

stage, when the investigation is said to be at crucial stage and

investigation is under process as per the statement made by the

learned Additional Advocate General, it would not be appropriate

to release the accused-applicants on bail. Two principal accused

are yet to be arrested and the investigation which is pending

under Section 173(8) Cr.P.C. has to be completed. In the case of

Brijraj Singh Vs. State of Rajasthan, reported in RLW 2012(4)

(Raj.)3277, following view has been taken by this Court:-

So far as the case of Sanjay Chandra (supra) is concerned, the allegation against the accused therein was that he entered into a criminal conspiracy with the accused A. Raja, R.K. Chandolia and other accused persons during September, 2009 to get UAS licence for providing telecom services to otherwise an ineligible company. Sanjay Chandra was the Managing Director of M/s Unitech Wireless (Tamil Nadu) Ltd. The first come first served procedure of allocation of UAS Licences and spectrum was manipulated by the accused persons in order to benefit M/s Unitech Group of Companies. The cut off date of 25.9.2007 was

decided by accused public servants of DOT primarily to allow consideration of Unitech Group applications for UAS licences. The said Companies were ineligible to get the licences till the grant of UAS licences. The Unitech Group was almost last within the applicants considered for allocation of UAS licences and as per existing policy of first come first served, no licence could be issued in as many as 10 to 13 circles where sufficient spectrum was not available. The accused Sanjay Chandra, in conspiracy with accused public servants, was aware of the whole design of the allocation of LOIs. It was in these facts situation that the Hon''ble Supreme Court considered the bail application of Sanjay Chandra which is totally different from the one, of the present case.

In the case of Sanjay Chandra (supra), the Hon''ble Supreme Court had, in para 25, observed:

......Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant of denial is regulated, to a large extent, by the facts and circumstances of each particular case......

Therefore, the case of Sanjay Chandra (supra) is of no assistance to the accused petitioner. It is important to note that the principle of law is well settled that the law of precedent is not strictly applicable in case of bail to an accused person. The question of bail to each accused has to be considered on the basis of their facts situation.

"6. Since long, the law with regard to the grant or refusal of bail is well settled. A court while granting

bail has to exercise its discretion in judicious manner and not as a matter of course. At the stage of granting bail, a detailed examination of the evidence and elaborate documentation of the merit of the case is not to be undertaken.

For the sake of illustration, a reference be made to the case of Prahlad Singh Bhati Vs. NCT, Delhi- (2001) 4 SCC 280. The Hon''ble Supreme Court had observed thus:

... while granting the bail, the court has to keep in mind the nature of accusations, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations....

The aforesaid principles have been reiterated by the Hon''ble Supreme Court in the case of State of UP. Vs. Amarmani Tripathi- (2005) 8 SCC 21. In para 11 of the said judgment, the Hon''ble Court has further laid down:

....It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay Vs. Sudarshan Singh and Puran Vs. Rambilas.)

While a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary."

In view of the above, no just reason is available to enlarge

the accused-applicants on bail at this stage and furthermore, since

two principal accused persons are yet to be arrested, therefore,

enlargement of the accused-applicants on bail may hamper the

cause of investigation and as regards the investigation under

Section 173(8) Cr.P.C., it is expected from the prosecution to

complete the same within a period of thirty days from today.

The bail applications of the accused-applicants are

accordingly dismissed.

A copy of this order be placed in respective connected cases.